STATE BANK OF INDIA Vs. ASHOK STORES

JUDGEMENT

(1.) An order of the Subordinate Judge, Bhubaneswar, rejecting the prayer of the petitioner for adducing additional evidence has given rise to this revision.

(2.) The opposite parties having obtained a cash credit accommodation to the extent of Rs. 5,000/- secured a loan from the petitioner-Bank. When they failed to clear up the dues, the petitioner filed the suit for realisation of the amount outstanding against the opposite parties. The trial court decreed the suit in part holding the balance to have been barred by limitation. The petitioner filed an appeal and therein filed an application under O.41, R.27 of the Civil P.C. for acceptance of certain documents, namely, statement of accounts with certificate under the Bankers' Books of Evidence Act and certain cash credit pay-in-slips of different dates as additional evidence, petitioner's case was that on 18-9-1976 while the case was taken up for hearing, it was not ready and filed an application for time. Its prayer for adjournment having been rejected, the case was taken up and in such circumstances, it could not file the documents though the documents were in its possession. The petitioner also contended that under confusion of law, appropriate steps for proving the documents were not taken earlier. Its prayer before the trial court made belatedly for re-examination of its witnesses to prove the documents was refused. According to the petitioner, the documents would prove acknowledgment of liability by the opposite parties and so, no part of its claim would be barred by limitation. Against the aforesaid background, the petitioner filed its application for reception of additional evidence. The appellate court rejected the petition holding as follows :

(3.) The provisions contained in O.41, R.27 of the Civil P.C. are clearly not intended to allow the litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up the omissions in the court of appeal. Under cl. (1) (b) it is only where the appellate court requires it that additional evidence can be admitted. It may be required "to enable the court to pronounce the judgement or for any other substantial cause", but in either case it must be the court that requires it. The legitimate occasion for the exercise of his discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent". Such was the view of their Lordships of the Privy Council in Parsotim's case (AIR 1931 PC 143) expressing themselves strongly while approving the observations made by Lord Robertson in Kessowji's case (ILR (1907) 31 Bom 381). Their Lordships further observed ;